Bush vBush v. Congress: The Looming Battle Over Executive Privilege - New York 
Times 
 
 
 
 
 
April 10, 2007
Editorial Observer
Bush v. Congress: The Looming Battle Over Executive Privilege 
By ADAM COHEN
In the summer of 1974, Richard Nixon bet his presidency on the doctrine of 
executive privilege, and lost. Nixons lawyer, James St. Clair, argued to the 
Supreme Court that he did not have to give a special prosecutor the Watergate 
tape recordings of Nixon talking with various advisers. But in the oral 
argument, the justices were skeptical. Lewis Powell, the courtly Virginian, 
asked: Mr. St. Clair, what public interest is there in preserving secrecy with 
respect to a criminal conspiracy?
Justice Powells question cut through Nixons central claim: that executive 
privilege gives presidents an absolute right to keep their communications 
secret. Barely two weeks after the oral argument, the court unanimously ordered 
Nixon to turn over the tapes.
Three decades later, the Bush administration is threatening to invoke executive 
privilege to hobble Congresss investigation into the purge of United States 
attorneys. President Bush has said that Karl Rove, his closest adviser, and 
Harriet Miers, his former White House counsel, among others, do not have to 
comply with Congressional subpoenas because the president relies upon his staff 

to give him candid advice.
This may well end up in a constitutional showdown. If it does, there is no 
question about which side should prevail. Congress has a right, and an 
obligation, to examine all of the evidence, which increasingly suggests that the 

Bush administration fired eight or more federal prosecutors either because they 
were investigating Republicans, or refusing to bring baseless charges against 
Democrats. The Supreme Courts ruling in the Watergate tapes case, and other 
legal and historical precedents, make it clear that executive privilege should 
not keep Congress from getting the testimony it needs.
Its odd to hear President Bush invoke executive privilege because it is just 
the sort of judge-made right he has always claimed to oppose. Executive 
privilege is not mentioned in the Constitution, but judges have found it in the 
general principle of separation of powers. Presidents like to invoke it in 
sweeping ways, but the courts have been less enthusiastic.
United States v. Nixon is the Supreme Courts major ruling on executive 
privilege. The first important principle that it established seems obvious, but 
it is not: that presidents cannot simply declare what information is privileged. 

Nixon argued, as Mr. Bush seems poised to, that presidents have an inherent 
authority to refuse to disclose. But the Supreme Court made it clear that as 
with other legal issues, courts, not presidents, have the final say on when 
executive privilege applies.
The Nixon cases second important holding is that privilege claims are judged by 

a balancing test. The justices acknowledged that a presidents ability to get 
candid advice is important. But they also factored in that in the case of the 
Watergate tapes, no military or diplomatic secrets were at stake. On the other 
side of the scales, the court said, were the inroads of such a privilege on the 

fair administration of criminal justice. The need for evidence, it concluded, 
was more important than the presidents need for secrecy.
There is one significant way in which Mr. Bush may have a stronger case. Nixon 
was resisting a criminal subpoena, while the subpoenas for Mr. Rove and the 
others would come from Congress. But in other ways, Mr. Bushs case is weaker. 
The Watergate tapes were recordings of a presidents private discussions with 
top advisers, the essence of confidential presidential communications. Mr. Bush, 

by contrast, is trying to shield communications that occurred among members of 
his staff. It is hard to see how revealing these conversations would compromise 
his ability to get candid advice.
There is also a strong argument that the Bush administration has already waived 
executive privilege because it has released extensive e-mail notes about the 
firings.
If this dispute ends up in court, it is likely that Mr. Bush will lose on the 
balancing test. His interest in shielding communications among his staff members 

is weak, and there are no national security issues at stake. On the other hand, 
a court would probably find that Congresss interest in getting the testimony 
was considerable. If these prosecutors were fired to help Republicans win 
elections, such actions would be a dangerous politicization of the justice 
system that should get thorough scrutiny.
President Bush is not only taking on legal precedents, but historical ones as 
well. When Congress has pressed for testimony, presidents have generally agreed, 

however reluctantly. Bruce Fein, the conservative legal commentator, urged Mr. 
Bush to cooperate, noting that President Ronald Reagan waived executive 
privilege in the Iran-contra inquiry and let national security advisers and 
cabinet secretaries testify. 
This administration could try to delay by challenging the subpoenas in court, a 
step that could be a drawn-out process. But it would then have another court to 
worry about: the court of public opinion. Monica Goodling, the Justice 
Departments liaison to the White House, has already invoked her constitutional 
right against self-incrimination. If top advisers start to claim executive 
privilege, the American public is likely to suspect a cover-up.
In the end, the public may be the harshest judge of all. Executive privilege 
claims now occur, as one law review article put it, in Nixons shadow. Fairly 
or unfairly, Nixon, who resigned in disgrace shortly after the Supreme Court 
ruled, gave executive privilege a bad name, which it keeps to this day. If Mr. 
Bush battles Congress in court, he will be fighting not only legal precedents, 
but the nations collective memory about the last president to take this stand. 
 
 
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